Evans v. Farmer, Nos. 12214

CourtSupreme Court of West Virginia
Writing for the CourtCAPLAN
Citation148 W.Va. 142,133 S.E.2d 710
Docket Number12215,Nos. 12214
Decision Date10 December 1963
PartiesDana Stike EVANS v. Henry FARMER et al., Virginia Mae Miller. Dana Stike EVANS v. Henry FARMER et al.

Page 710

133 S.E.2d 710
148 W.Va. 142
Dana Stike EVANS
v.
Henry FARMER et al., Virginia Mae Miller.
Dana Stike EVANS
v.
Henry FARMER et al.
Nos. 12214, 12215.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 17, 1963.
Decided Dec. 10, 1963.

Page 711

Syllabus by the Court

1. It is the peculiar and exclusive province of the jury to weigh the evidence and resolve questions of fact when the testimony of witnesses is conflicting or when the facts, though undisputed, are such that reasonable men may draw different conclusions from them.

[148 W.Va. 143] 2. The questions of negligence, contributory negligence, proximate cause, intervening cause and concurrent negligence are questions of fact for the jury where the evidence is conflicting or when the facts, though undisputed, are such that reasonable men draw different conclusion from them.

3. 'To be actionable, negligence must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury.' Point 3, Syllabus, Hartley v. Crede, 140 W.Va. 133 [82 S.E.2d 672].

4. Where two or more persons are guilty of negligence which occurs in point of time and place, and together proximately

Page 712

cause or contribute to the injuries of another, such persons are guilty of concurrent negligence and recovery may be had against any or all of them.

5. Whether the negligent acts of two or more tort-feasors occurred in point of time so as to constitute concurrent negligence is a question for jury determination unless the evidence is undisputed and the facts are such that only one reasonable conclusion may be drawn therefrom.

6. 'In a case tried by a jury where the evidence relating to the defense of sudden emergency is conflicting or where such evidence, though undisputed, is such that different inferences reasonably may be drawn therefrom it is for the jury to determine whether the defendant was confronted with a sudden emergency, the nature and extent of the emergency, whether the emergency was created by the defendant, and whether the defendant in the emergency conducted himself as a reasonably prudent person would have conducted himself in like circumstances.' Point 3, Syllabus, Reilley v. Byard, 146 W.Va. 292, 119 S.E.2d 650.

7. A witness may testify at a trial in relation to matters on which he has made a pre-trial deposition and, if his testimony [148 W.Va. 144] differs from that contained in the deposition, the deposition may be introduced for the purpose of impeaching or contradicting such witness.

8. It is the duty of the trial court to give an instruction presenting a pertinent theory in a case when there is competent evidence tending to support such theory.

William Sanders, Edwin B. Brown, Princeton, for appellant Virginia Mae Miller.

Burton & Burkett, Walter W. Burton, Princeton, for Dana Stike Evans.

Joseph M. Sanders, Bluefield, for appellee Henry Farmer.

CAPLAN, Judge.

In this civil action instituted in the Circuit Court of Mercer County in August, 1961, the plaintiff, Dana Stike Evans, seeks a recovery of damages from the defendants, Henry Farmer and Virginia Mae Miller, for injuries incurred by her in certain automobile collisions allegedly caused by the joint negligence of the defendants. At the [148 W.Va. 145] time of her collision Virginia Mae Miller was the driver of a certain automobile owned jointly by Basil Miller and Marie T. Miller, the latter parties also having been made parties defendant in this action. However, the plaintiff took a nonsuit as to Basil and Marie T. Miller and they were dismissed from the case.

The collisions out of which this action arose occurred on December 24, 1960, at approximately 9:30 P.M., on State Route 10 in the Town of Lashmeet, Mercer County, West Virginia. The evidence reveals that it had been raining and snowing that night; that, although there was no general snow on the road, there were spots covered by ice; and that the road was wet and the visibility poor. These accidents happened at about mid-point of a portion of this road which is approximately nine-tenths of a mile in length and which is relatively straight and level. The hard surface of the road is twenty-two feet in width and is constructed of asphalt. There is a usable berm on the north side of the road, adjacent to the westbound lane of traffic, of about eight feet and a similar berm on the south side, adjacent to the eastbound lane, of seven feet in width.

At the aforesaid time and place, and under the conditions described above, the plaintiff, together with her two minor children, was a passenger in an automobile owned and driven by her husband, Eugene Ray Evans. They were traveling in a westerly direction on State Route 10. The plaintiff testified that her husband was driving between thirty-five and forty miles per hour; that when they were in this straight portion of the road she saw the defendant

Page 713

Farmer's vehicle proceeding toward them from the opposite direction; that Farmer crossed over into their lane of traffic; that when it became evident that the car of defendant Farmer was going to strike their automobile, her husband slowed almost to a stop and pulled to the right of the highway so that the two right wheels were about two feet onto the north berm; and that while so situated the left front of Farmer's vehicle collided head-on with the left front of the Evans car.

[148 W.Va. 146] As the result of this collision the vehicle in which the plaintiff was a passenger remained headed in a westerly direction with its two right wheels approximately two feet on the north berm and parallel to the road. This is in about the same position as it was when the collision occurred. The Farmer automobile had swerved across the road so that it was almost perpendicular thereto. Its front end was two to four feet from and was facing the side of the Evans car. The left front light of the Evans car and the left front light of the Farmer vehicle were out, having been demolished in the collision. However, the right front light of the Evans automobile continued to shine and was pointed in a westerly direction. The right front light of Farmer's car remained on and shone against the light colored car of Evans. By reason of the position of Farmer's car, when it came to rest after the collision, both the easterly and westerly lanes of traffic were completely blocked.

Mr. Evans, after determining, at least to his own satisfaction, that the members of his family were not injured seriously, got out of his vehicle and went directly to Farmer's car. There he observed Farmer and testifed at the trial that 'he [Farmer] had either had an epileptic stroke or he was so drunk he didn't know where he was.' He further testified that Farmer did not speak to him, although he was conscious and appeared to have suffered no injuries.

Because of Farmer's apparent condition of drunkenness, Evans believed that he was not competent to be of any aid to the dangerous situation which had been created. The evidence reveals that Farmer continued to sit in his automobile and made no effort to alleviate the danger which existed by reason of his admitted negligence. Approximately two hours later, however, when the police arrived on the scene, Farmer walked over to the police car where he was interrogated.

Several people had gathered at the scene of the accident. Recognizing the danger created by the totally blocked highway, Mr. Evans enlisted the aid of two of the persons[148 W.Va. 147] so gathered to act as flagmen to warn approaching traffic of the existing perilous condition. Sam Sexton, Sr., a man small in stature and eighty-two years of age, volunteered to warn traffic approaching from a westerly direction. Another of the observers went to the east on the highway to stop traffic coming from that direction. Neither of the flagmen had a light for the purpose of signaling. Thereupon, Mr. Evans went to a nearby house to call the police.

The plaintiff, after examining her children to determine if they received any injuries, went over to the Farmer car to see if he was injured. She testified that he appeared to be intoxicated and she believed that he had incurred no injuries as a result of the collision. She then returned to her automobile where she became engaged in conversation with a Mr. Hall. During this conversation she was standing at the edge of the highway near the left rear fender of her husband's vehicle.

The second accident occurred shortly thereafter. There is a conflict in the evidence as to the length of time that elapsed between the first and second collisions. From the testimony it appears that the second collision occurred somewhere between five and twenty minutes after the Farmer vehicle had struck that of Evans. However, a preponderance of the evidence indicates that the lapse of time between the two collisions was from five to ten minutes.

Page 714

The defendant, Virginia Mae Miller, driving her vehicle in an easterly direction along this highway, at a speed of thirty to forty miles an hour, came upon Mr. Sexton, the flagman heretofore described. Thinking that he was a hitchhiker, the defendant swerved to the left to avoid hitting him and proceeded down the highway in the lefthand lane. Then, seeing Farmer's wrecked car in her right lane, she veered further left and collided with the Evans vehicle.

The plaintiff testified that when she saw the Miller vehicle approaching she noticed her young son behind her automobile. She called to him and pushed him out of the way but was behind her vehicle when it was struck [148 W.Va. 148] by the car of defendant Miller. The impact of this second collision knocked the Evans car down onto the road approximately fifty to seventy feet, dragging the plaintiff along and severely injuring her.

The testimony of defendant Miller revealed that she had been driving with her lights on 'dim' and that she could not see more than sixty feet ahead; that...

To continue reading

Request your trial
61 practice notes
  • Neely v. Belk Inc., No. 33597.
    • United States
    • Supreme Court of West Virginia
    • June 26, 2008
    ...563 (1994); see also Syl. Pt. 3, in part, Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217 (1953), Syl. Pt. 2, in part, Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 Essentially, the judge in cases such as the one before us has the responsibility of reviewing the evidence to see if it is suf......
  • Anderson v. Moulder, No. 19246
    • United States
    • Supreme Court of West Virginia
    • May 18, 1990
    ...liable in an action by the injured person or, in case death results therefrom, by his personal representative." See also Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 The question, then, becomes whether one who sells beer or alcoholic beverages to a minor can ever reasonably foresee that t......
  • Robertson v. LeMaster, No. 15543
    • United States
    • Supreme Court of West Virginia
    • March 24, 1983
    ...cause of the injury." Quoting Syllabus Point 16, Lester v. Rose, 147 W.Va. 575, Page 570 130 S.E.2d 80 (1963); see also Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 (1963); Smith v. Penn Line Service, Inc., 145 W.Va. 1, 113 S.E.2d 505 (1960); Hartley v. Crede, 140 W.Va. 133, [171 W.Va. 61......
  • Sheetz v. Bowles Rice McDavid Graff & Love, No. 28470.
    • United States
    • Supreme Court of West Virginia
    • April 27, 2001
    ...then such negligence may very well constitute the proximate cause of said injury, even if intervening negligence occurs. Evans v. Farmer, 148 W.Va. 142, 154-156, 133 S.E.2d 710, 717-718 (1963). Additionally, where two or more persons are guilty of separate acts of negligence which in point ......
  • Request a trial to view additional results
61 cases
  • Neely v. Belk Inc., No. 33597.
    • United States
    • Supreme Court of West Virginia
    • June 26, 2008
    ...563 (1994); see also Syl. Pt. 3, in part, Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217 (1953), Syl. Pt. 2, in part, Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 Essentially, the judge in cases such as the one before us has the responsibility of reviewing the evidence to see if it is suf......
  • Anderson v. Moulder, No. 19246
    • United States
    • Supreme Court of West Virginia
    • May 18, 1990
    ...liable in an action by the injured person or, in case death results therefrom, by his personal representative." See also Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 The question, then, becomes whether one who sells beer or alcoholic beverages to a minor can ever reasonably foresee that t......
  • Robertson v. LeMaster, No. 15543
    • United States
    • Supreme Court of West Virginia
    • March 24, 1983
    ...cause of the injury." Quoting Syllabus Point 16, Lester v. Rose, 147 W.Va. 575, Page 570 130 S.E.2d 80 (1963); see also Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 (1963); Smith v. Penn Line Service, Inc., 145 W.Va. 1, 113 S.E.2d 505 (1960); Hartley v. Crede, 140 W.Va. 133, [171 W.Va. 61......
  • Sheetz v. Bowles Rice McDavid Graff & Love, No. 28470.
    • United States
    • Supreme Court of West Virginia
    • April 27, 2001
    ...then such negligence may very well constitute the proximate cause of said injury, even if intervening negligence occurs. Evans v. Farmer, 148 W.Va. 142, 154-156, 133 S.E.2d 710, 717-718 (1963). Additionally, where two or more persons are guilty of separate acts of negligence which in point ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT